220 N.W. 406 | Minn. | 1928
The court made findings and directed the amendment of the decree and further found that the defendant had paid the plaintiff in full. From a judgment amending the probate judgment and adjudging that the plaintiff recover nothing, the plaintiff appeals.
1. The probate court is a court of superior jurisdiction, and its decrees are not subject to collateral attack. 5 Dunnell, Minn. Dig. (2 ed.) §§ 7769a, 7774.
The most that can be claimed by the defendant is that there was error in decreeing the sum of $4,261.06 to the plaintiff in that he, the defendant, charged himself as administrator with $1,000 more than he should and made other minor mistakes against himself amounting to $178.24, resulting in making the plaintiff's distributive share $785.48 more than it should be. It was his own doing. Such error could be corrected on appeal to the district court from the *70 probate court, or within the proper time the probate court could have amended the decree.
It has been said in a general way that a probate decree may be amended in an action in the district court because of fraud or mistake; but in no case has there been an amendment where the error was no more than an error in making up the account, as in this case.
The cases cited by the plaintiff, applied to the facts of this case, do not support her contention. In Vaule v. Miller,
2. The court found that prior to the commencement of the action the defendant paid to the plaintiff, or at her request, all of the amount involved in the original decree, and that there was nothing due from defendant at the time of the commencement of the action. There is no settled case and the evidence is not before us. This finding prevents the recovery of a money judgment by the plaintiff.
The judgment under review, so far as it adjudges that there be no money recovery, is correct. However the decree of distribution should not have been amended, and the judgment, so far as it assumes to amend it, is in error. The judgment is modified by vacating the portion of it which amends the decree of distribution of the probate court; otherwise, and in so far as it denies the plaintiff a money judgment, it is affirmed.
Judgment modified.